| Trinagel v Boyar |
| 2010 NY Slip Op 00955 [70 AD3d 816] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Robert S. Trinagel, Appellant, v Mindy L. Boyar,Respondent. |
—[*1] Mary Ann Aiello, P.C., Garden City, N.Y. (Rebecca Szewczuk of counsel), for respondent. Arza Feldman, Uniondale, N.Y., attorney for the child.
In a matrimonial action in which the parties were divorced by judgment entered October 30,2003, the father appeals, as limited by his brief, from so much of an order of the Supreme Court,Suffolk County (Pach, J.H.O.), dated December 11, 2008, as, after a hearing, denied his motionto modify the parties' stipulation dated August 4, 2003, so as to award him sole custody of theparties' child or, in the alternative, residential custody of the child on school days.
Ordered that the order is affirmed insofar as appealed from, with costs.
In a stipulation of settlement which was incorporated but not merged in the parties' judgmentof divorce entered October 30, 2003, the parties agreed to joint custody of their only child, withthe mother having residential custody. The father moved to modify the parties' judgment ofdivorce so as to award him sole custody of the child or, in the alternative, residential custody ofthe child on school days.
Modification of an existing custody or visitation arrangement is permissible only upon ashowing that there has been a change in circumstances such that a modification is necessary toensure the continued best interests and welfare of the child (see Matter of Adams v Perryman, 68 AD3d 860 [2009]; Matter of Zeis v Slater, 57 AD3d793 [2008]; Matter of Wirth vWirth, 56 AD3d 787 [2008]). The best interests of the child are determined by a reviewof the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 171[1982]). Since any custody determination depends to a very great extent upon the hearing court'sassessment of the credibility of the witnesses and of the character, temperament, and sincerity ofthe parties, its findings are generally accorded great respect and will not be disturbed unless theylack a sound and substantial basis in the record, or are contrary to the weight of the evidence(id. at 173; Matter of Nunn vBagley, 63 AD3d 1068, 1069 [2009]; Matter of Carrasquillo v Cora, 60 AD3d 852, 853 [2009];Matter of Neu v Neu, 303 AD2d 509, 510 [2003]; Kuncman v Kuncman, 188AD2d 517, 518 [1992]). Here, the Supreme Court properly determined that under all of thecircumstances, an award of sole custody to the father was not in the child's best interests (seeEschbach v Eschbach, 56 NY2d 167 [1982]). Moreover, contrary to the father's contention,the Supreme Court's determination that a change in residential custody would not promote thebest interests of the child is supported by a sound and substantial basis in the record, and wedecline to [*2]disturb it (see Matter of Adams v Perryman, 68 AD3d 860 [2009]; Matter of Delano v Desimone, 60AD3d 673, 674 [2009]; Matter of Neu v Neu, 303 AD2d at 510). Covello, J.P.,Santucci, Miller and Eng, JJ., concur.